In her Brexit speech on 2 March 2018, Prime Minister Theresa May highlighted broadcasting as a key priority in the ongoing negotiations with the EU.
This follows a warning that Britain's status as a global broadcasting hub is under threat if broadcasters based in the UK do not have continued access to the EU.
Regulation of broadcast services in this country currently derives, in part, from the EU’s Audiovisual Media Services Directive ("AVMSD").
The AVMSD enshrines the country-of-origin principle, which allows broadcasters to freely transmit throughout the EU without the need for multiple licences, as long as they are licensed and regulated in one Member State.
When the UK leaves the EU, broadcasters could lose the benefit of this principle. This could mean that UK-licensed broadcasters will no longer be guaranteed freedom of retransmission in other Member States and will be required to comply with additional licensing in at least one of the Member States in which they are active.
In her speech, Theresa May conceded that post-Brexit we will not be able to have exactly the same arrangements with the EU as we do now. May argued that there are incentives on both sides to explore "creative options" such as mutual recognition (essentially meaning that the EU and UK would accept that they each have different rules that strive to achieve the same outcomes and so automatically allow products onto each other's markets), because there are 35 channels and on-demand services which are offered in the UK but licensed elsewhere in the EU.
Mutual recognition, May said, "would allow for continued trans-frontier broadcasting and recognise the enriching role that British broadcasters and programme makers play not only in British but, more broadly, in our common European culture."
However, if the other 27 Member States are not minded to grant reciprocal alignment, then many major media companies based in the UK will inevitably be tempted to relocate.
Channel providers who have bases in Britain include Discovery, Disney, Turner and Viacom, and the industry association for commercial broadcasters warned last month that losing EU-wide broadcast rights could jeopardize £1 billion in annual investment from these international players. If the UK cannot secure a free-trade deal to stop this happening then Ireland, Amsterdam and Paris are all likely to be popular relocation destinations.
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© Herbert Smith Freehills 2019